Mistaken medical diagnoses are surprisingly common, costly, and harmful. Between 1986 and 2010, the leading cause of malpractice payouts was a missed or incorrect diagnosis. Researchers at Johns Hopkins University School of Medicine have estimated that diagnostic errors might be responsible for as many as 160,000 permanent injuries or deaths per year.
While not every missed, incorrect, or late diagnosis ("misdiagnosis") equals a medical malpractice claim, many do. Those that do are the focus of this article.
There are several ways that doctors can make diagnostic mistakes. Three of the most common happen when the doctor:
The wrong diagnosis happens when the doctor mistakenly decides you're suffering from a condition you don't have. For example, suppose a doctor diagnoses a patient who is having a heart attack as suffering from acid reflux. If the patient doesn't have acid reflux, the doctor has made the wrong diagnosis.
A doctor can fail to diagnose a condition in a couple of ways. First, the doctor might give a clean bill of health to a patient who has a diagnosable condition. In other words, the doctor makes no diagnosis at all.
Second, the doctor might correctly diagnose one condition but fail to diagnose another. Return to our heart attack example, above: The patient is having a heart attack but the doctor diagnoses acid reflux. If the patient does have acid reflux, the doctor has correctly diagnosed that condition. But if the doctor doesn't also spot the heart attack, the doctor has failed to diagnose that condition.
The doctor eventually makes the correct diagnosis, but only after a significant delay from the time the condition should have been diagnosed.
Suppose our heart attack patient leaves the emergency room with only an acid reflux diagnosis, but returns several hours later complaining of more and worse symptoms. At this second visit, the doctor diagnoses the patient as suffering from a heart attack. The doctor has now correctly diagnosed this condition, but only after a significant delay.
Some conditions are more often missed or misdiagnosed than others. A few conditions create diagnostic problems in specific patient groups. Let's look at examples of both, then we'll talk about the consequences that can result from a misdiagnosis.
A study by the Armed Forces Institute of Pathology showed that in the family practice setting, these were the five most often misdiagnosed conditions:
Women are likely to experience more diagnostic errors than men when it comes to certain conditions. For example, women are 50% more likely than men to be misdiagnosed after suffering a heart attack. Misdiagnosis is also about 30% more common in women who have a stroke.
The problem isn't limited to conditions common to both genders. According to an estimate by the American College of Obstetricians and Gynecologists, roughly 10% of women in their reproductive years suffer from a painful and often debilitating condition called endometriosis. But it takes, on average, between 6 and 10 years after the first symptoms appear to get the condition correctly diagnosed.
Not all misdiagnoses result in harm. In those that do cause harm, many times the harm is minor. On occasion, though, serious or even fatal consequences can follow a misdiagnosis. Here are some examples.
(Learn more about other kinds of common doctor and hospital medical errors.)
If you bring a misdiagnosis malpractice claim or lawsuit, here are the elements you'll need to prove:
In most malpractice cases, you and the doctor will disagree over the second and third elements. That's where we'll focus our attention.
(To learn more about the elements of a medical malpractice claim, see Nolo's article Medical Malpractice Basics.)
Medical negligence happens when a doctor fails to use the same level of care and skill as a similar doctor in the community would use under the circumstances. What does that mean? In a medical misdiagnosis case, you must prove that a doctor in a similar specialty, under similar circumstances, would not have misdiagnosed your condition.
Not every diagnostic error is malpractice. Skillful doctors sometimes make mistakes even when they're being careful. To decide if the doctor was negligent, you must evaluate what the doctor did and didn't do in making (or not making) a diagnosis.
This evaluation likely will require that you review the list of possible conditions the doctor considered when evaluating you—called your "differential diagnosis." After creating your differential diagnosis, the doctor rules in and rules out conditions by doing tests, getting X-rays or other diagnostic images, or referring you to specialists. Ideally, at the end of this process, the doctor is able to arrive at a correct diagnosis.
To prove misdiagnosis malpractice, you'll probably have to show that the doctor made one of these errors.
Most often, proving negligence in a misdiagnosis lawsuit is both difficult and complicated. You'll need expert witnesses to review your file and testify that the doctor was negligent. You should hire an experienced medical malpractice lawyer to handle your case.
In any medical malpractice case, it's not enough to prove that the doctor was negligent. You also have to prove that the doctor's negligence caused you some injury. Specifically, you must show that:
Here are some common examples. A delayed cancer diagnosis might mean longer or more difficult chemotherapy or radiation. Worse yet, a delay in diagnosis might allow cancer to progress or spread to the point where it no longer can be treated effectively and is more likely to cause death. With some cancers, a delay in treatment increases the risk of recurrence.
If you win a medical malpractice case—including one based on a misdiagnosed condition—you're allowed to collect compensation (called "damages") for the injuries the doctor's negligence caused. Generally speaking, these compensatory damages fall into two categories:
Special damages compensate you for your out-of-pocket losses. For example, past and future medical expenses and lost earnings are included in your special damages. So are things like therapy costs, amounts you pay for medical equipment like crutches, and pharmacy charges.
General damages are meant to compensate you for more "intangible" injuries, such as pain and suffering, emotional distress, loss of enjoyment of life, and disability and disfigurement. These damages can add up quickly in a medical malpractice case. Because general damages can be difficult to value, your lawyer might use a mathematical formula (sometimes called a "multiplier") to put a dollar value on them.
Note that most states have enacted damage caps that limit the general damages you can collect. Since general damages might be the biggest item of damage in a malpractice lawsuit, these caps can significantly reduce the value of your case. If you live in a damage caps state, you'll want to have an experienced malpractice attorney lawyer handling your case.
There's no simple answer to that question. And it's really not a question you want to answer on your own, without expert legal advice. Generally speaking, here are some of the things you need to know to answer that question.
There's almost no such thing as a simple misdiagnosis malpractice case. Even when the doctor's error seems obvious, you still might need expert witnesses to prove your case. In any medical malpractice lawsuit, you can expect the doctor to vigorously fight your negligence claims.
Malpractice cases tend to be very expensive, for a number of reasons. First, you'll almost certainly need to have one or more expert witnesses involved in the case, who will testify to your treating doctor's negligence. If you're trying to win future damages such as medical expenses or lost earnings, you'll need experts there, too.
The costs to take even a moderately complicated malpractice case to trial can easily exceed $75,000. If you have a strong case, you might find a malpractice lawyer who will advance these case expenses and deduct the amounts advanced from any settlement or jury verdict you get. But because they can be so costly, good malpractice lawyers will think very carefully about taking on a case.
Putting a value on your medical malpractice case is no simple task. In addition to valuing your damages (including the impact of damage caps), you must consider factors such as:
Weighing these factors (and others) to arrive at a value for your case requires expertise that can only be gained through years of experience working on and trying medical malpractice cases. In addition, an experienced lawyer knows the claim valuation practices and jury verdict history in your area. You'll be hard-pressed to put an accurate value on your misdiagnosis case without that help.
Medical malpractice lawsuits, including diagnostic error cases, are among the most difficult of all personal injury cases. Complex facts, difficult medical and legal issues, and the need for expert witnesses are just a few of the many reasons why you don't want to handle your malpractice suit without expert legal help. You can bet that the doctor you're suing will have capable and experienced lawyers on the case, and you should too.